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Topic: Gun Control and the 2nd Amendment (Read 1185 times)

???Can somone with a clue please explain what a "well regulated militia" means in the 2nd Amendment to our Constitution? Some people think that this gives the Federal Government the right to regulate our right to bear arms! This seems to me like an contradiction to the phrae shall not be infringed upon! I always thought it meant can't remain and seize power after the conflict!

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

The first part, "A well regulated militia, being necessary to the security of a free state" is the preamble. It states the purpose of what is about to come after it. In historical context, a militia was a civilian military made up of all able bodied men from all walks of life. These were not professional soldiers, they were the average Joe blacksmith, farmer, gunsmith, etc etc. Being well-regulated meant that they practiced regularly and were established at some level... for example, you could be in a militia that meets and practices on the weekends, back then it was usually required. Militias like these were common in those times since they were necessary for protection from bandits, Indian attacks, and eventually fighting against tyranny. Militias might have even been called upon by the local government (at the town or state level perhaps) to fend off invaders, or to help with disaster relief/recovery. Even today, this is still possible, but the state now has the National Guard, however, the National Guard isn't the same as a militia since it is no longer a civilian military. In modern terms, the National Guard is considered the "organized militia" whereas the civilian militia is considered the "unorganized militia". The Unorganized militia may still be called upon as reserves, but they are for all intents and purposes, independent of the state unlike the National Guard, which is state funded and state organized. That right there, is very important to remember when distinguishing the two.

Another part that needs to be hashed out in historical context is the meaning of the word, "state". A state in those times refers to a body of government, or civil authority. England was a state, France was a state... each of the thirteen original states were meant to be on this same level of distinction, bound together loosely for mutual protection and prosperity. The fact that they said "free state" is important since it describes the condition of the state... free. It is safe to say then, ignoring everything else they said that would back this next statement up, that they had defense against tyrannical government in mind when they wrote this Amendment. This is why they saw fit to distinguish that it is a militia which is necessary to the security of a free state, rather than a standing army such as the National Guard, the Army, Marines, Navy, Air Force, and Coast Guard.

The second part, is telling the reader how the first part will be accomplished. Since we've established that a militia is made up of armed civilians, it would make sense that in order for them to be able to perform their role in said militia, they would need to have their own weapon in order to participate. Therefore, the state should not be capable of making any sort of law prohibiting, or restricting the people from the ability to keep and bear arms. It is also important to note that they do not mention what kind of arms the people are allowed to have. The reason for this is that the founders knew that technology is always improving, and that the people should never be restricted to using arms that are inferior to any sort of invading force, standing army, or tyrannical government.

Another way of writing this amendment that spells it out...

"A well armed, and trained citizen military that is independent of the state, is necessary for protection, and the maintenance of liberty within a sovereign nation, therefore the ability of citizens to own and maintain their own firearms so that they may participate, shall not be restricted or prohibited in any way, shape or form."

Taking all of this into consideration, it's pretty clear that Thomas Jefferson was a man of his word when he said, "The most valuable of all talents is never using two words when one will do". Though it was officially written by James Madison, Thomas Jefferson was surely an enormous influence since he was in constant contact with Madison from Europe during the Constitutional Convention. In only twenty seven very carefully chosen words, they said a lot.

A well regulated militia, beingnecessary to the security of a freestate, the right of the people to keep and bear arms shall not be infringed.

EDITED FOR CLARITY:

(Due to the fact that) a well regulated militia, beingnecessary to the security of a free state, (for matters ofdefense against such militia) the right of the people to keep and bear arms shall not be infringed.

I will start with a synopsis in historical background using the words of thefounders, the authors of the Constitution.

The Founders felt that the 1787 Constitution, as it stood, did little toprotect the rights of the people, collectively or individually. Thisstarted one of the largest debates in American history and ended in theBill of Rights. Dozens of people wrote letters to the Editor in many largeand small papers across the country to engage in debate, among them wereJames Madison and Alexander Hamilton. These letters were then compiledinto a body of reference called "The Federalist and Anti FederalistPapers", which are regularly consulted by judges, attorneys, and scholars,when formulating opinions on the Founders' intent, when questions such asthis come forward.

There is this quote by Thomas Jefferson on the personal defense :

"Laws that forbid the carrying of arms... disarm only those who are neitherinclined nor determined to commit crimes. ...Such laws make things worsefor the assaulted and better for the assailants; they serve rather toencourage than to prevent homicides, for an unarmed man may be attackedwith greater confidence than an armed man."

Alexander Hamilton's comments from Federalist Paper No. 29 dealing withhis concern at the possibility of the federal power turning on the people :

"Little more can reasonably be aimed at, with respect to the people atlarge, than to have them properly armed and equipped...[the unregulated,undisciplined and basically inactive part of the militia.] ...This will notonly lessen the call for military establishments; but if circumstancesshould ...oblige the Government to form an army of any magnitude, that armycan never be formidable to the liberties of the people..."

And James Madison puts these concepts and concerns slightlydifferently in Federalist Paper No 46 :

"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate Governments, to which the people are attached [state and local governments], and by which the militia officers are appointed, forms a barrier against the enterprises of ambition,[of a Federal power] more insurmountable than any which a simple Government of any form can admit of."

In his pamphlets toward persuading Pennsylvania to ratify the Constitution, Noah Webster stated it this way:

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any bands of regular troops that can be, on any pretense, raised in the United States"*

*(Noah Webster from 'An Examination into the Leading Principles of the Federal Constitution', 1787, a pamphlet aimed at swayingPennsylvania toward ratification, from Paul Ford, ed., Pamphlets on the Constitution of the United States, at 56(New York, 1888)

These are not the only assertions from the Founders papers with regard tothis second Article of the Bill of Rights, there are many others by other authors,but the tone and tenor is pretty much the same.

The next thing that should be looked at regarding the Second Amendment isthe fallacious argument that somehow the amendment confers a right to bear arms to themilitia only, (which is often misidentified as the Military, which it is not). In fact the people 'are' the militia, they are one and the same... as was shown in quotesabove, and will be explained later. The militia is/are, essentially comprisedof the people, the citizen population in irregular form and are thereforedistinct from any organized federal military as a whole. With that said, Iwill prove that the right is conferred solely to the people and byextension to the militia. This will require the grammatical analysis ofthe Second Amendment, a project that was done some years back by J. NeilShulman under the title of "The Unabridged Second Amendment".

Mr. Schulman contacted Roy Copperud, who was a newspaper writer on major"Dailys" for over three decades, a distinguished teacher of journalism atthe University of Southern California. The author of a column dealing withthe professional aspects of journalism for "Editor and Publisher" a weeklymagazine for the news trade. He's also on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. He also wrote five books on American language usage.

The following question and answer exchange between Shulman and Copperudgets to the meat of the situation...

"[Shulman] The text of the Second Amendment is, 'A well-regulated Militia,being necessary for the security of a free State, the right of the peopleto keep and bear Arms, shall not be infringed."

“The debate over this amendment has been whether the first part of thesentence, ‘A well-regulated Militia, being necessary to the security of afree State', is a restrictive clause or a subordinate clause, with respectto the independent clause containing the subject of the sentence, 'theright of the people to keep and bear Arms, shall not be infringed.'”

[Copperud:] "The words 'A well-regulated militia, being necessary to thesecurity of a free state,' contrary to the interpretation cited in yourletter of July 26, 1991, constitutes a present participle, rather than aclause. It is used as an adjective, modifying 'militia,' which is followedby the main clause of the sentence (subject 'the right', verb 'shall'). Theto keep and bear arms is asserted as an essential for maintaining a militia.

[Schulman:] "(1) Can the sentence be interpreted to grant the right to keepand bear arms solely to 'a well-regulated militia'?"

[Copperud:] "(1) The sentence does not restrict the right to keep and beararms, nor does it state or imply possession of the right elsewhere or byothers than the people; it simply makes a positive statement with respectto a right of the people."

Schulman:] "(3) Is the right of the people to keep and bear armsconditioned upon whether or not a well regulated militia, is, in factnecessary to the security of a free State, and if that condition is notexisting, is the statement 'the right of the people to keep and bear Arms,shall not be infringed' null and void?"

[Copperud:] "(3) No such condition is expressed or implied. The right tokeep and bear arms is not said by the amendment to depend on the existenceof a militia. No condition is stated or implied as to the relation of theright to keep and bear arms and to the necessity of a well-regulatedmilitia as a requisite to the security of a free state. The right to keepand bear arms is deemed unconditional by the entire sentence."

[Schulman:] "As a 'scientific control' on this analysis, I would alsoappreciate it if you could compare your analysis of the text of the SecondAmendment to the following sentence,

"A well-schooled electorate, being necessary to the security of a freeState, the right of the people to keep and read Books, shall not beinfringed.'

"(1) Is the grammatical structure and usage of this sentence and the waythe words modify each other, identical to the Second Amendment's sentence;and

"(2) Could this sentence be interpreted to restrict 'the right of thepeople to keep and read Books only to a well-educated electorate... forexample, registered voters with a high-school diploma?"

(2) There is nothing in your sentence that either indicates or implies thepossibility of a restricted interpretation."

Though it is a rather short amendment it confers an incredible amount ofpower TO THE PEOPLE as individuals, and once that is understood, it says alot as to why there has been such usurpation over the decades of thepeople's power protected by this amendment, as well as our Constitution asa whole; usurpations by governments throughout the nation, local, state, andfederal.

How this "turn around in understanding" was accomplished can be found in theSupreme Court Ruling in the U.S. v Miller... the last Supreme Court casethat analyzed the Second Amendment as it pertains to the Nation as a whole, at length. The decision was reached a decision against the defendant Jack Miller, in abstentia, without an opposing argument over the military value of a sawed off, (short barreled) shotgun... which have been used by militaries world wide since the invention of gunpowder... the decision is quite odd don't you think...

The Second Amendment is so iron-clad which is why the court has historically refused to hear Second Amendment cases to thisday... (U.S. v Heller was concerned with The federal city, the District of Columbia, which it also services). The Miller decision would be opened up and much of what was concluded would be overturned along with virtually all Federal firearms "law" ...as it should be when the Second Amendment is interpreted by the court discussed as it pertains to the united States of America as a whole!

Miller nowhere explicitly says that the Second Amendment does or does notguarantee an individual right or a collective right. It is logicallyimpossible, by the way, for a "collective right" to exist unless theindividuals comprise the collectivity possess an individual right.Otherwise, a "collective right" would be like "collective property" in aCommunist country — the government would have a monopoly over the collective... total destruction of the People's rights as individuals.

The Supreme Court knows this as well, and ruled that the right is an individual right in the DC case... The Amendment was put in the Bill of Rights, and worded the way it is for a reason... and nothing about it suggests, that it is in any way open to "reasonable restriction"... (the camels nose under the tent).

The 2nd Amendment, indeed protects the individual's right... each of us can choose to exercise or not as our right as well... as with all of our rights, our actions are our own, as is the responsibility for our actions.

JTCoyoté

"A well regulated militia, composed of the body of the people, trained in arms, is the best most natural defense of a free country."~James Madison

???Can somone with a clue please explain what a "well regulated militia" means in the 2nd Amendment to our Constitution? Some people think that this gives the Federal Government the right to regulate our right to bear arms! This seems to me like an contradiction to the phrae shall not be infringed upon! I always thought it meant can't remain and seize power after the conflict!

The founders constructed the Bill of Rights in such a way that it could not be misconstrued. Madison used the word regulated pertaining to the Militia holding all of it's meanings to that time... none of which meant the militia was at all times under federal control... other than the portion called to federal service during time of war or other constitutionally supported emergency, and for no longer than 2 years.

"The right of civilians in a free society to possess "military-looking," or even actual military weapons, is essential if a monopoly of force is not to reside in the hands of government, where modern history shows the potential for far greater abuses and crimes exists than are possible for any deranged individual."~U.S. v. Miller, 307 U.S. 174 (1939)

Thank you, for the excellent reply to my question. Are you a teacher of History or just a Constitutional scholar?

Neither, actually. I'm flattered you'd think that I was though

I spend a lot of time reading and watching video on the subject, and I believe it was either David Kopel, Nutnfancy, or somebody else who basically explained it similar to how I just did, and then I just sort of built upon it.

In fact, part of it I believe was from one of those Reality Checks that they have on Fox News regarding the Second Amendment.